As Scotland seeks to navigate the public health emergency created by COVID-19, the UK and Scottish governments have imposed restrictions on individuals and businesses which are, in their scale and scope, unprecedented.
Legislation (laws) have been created to deal with the pandemic. Yet, at the daily briefings from the First Minister, ‘guidance’ issued by the Scottish Government is frequently spoken about.
If you’re left pondering the difference between what is legislative (provided for by law) and what is guidance, you may want to keep reading. This blog will not only answer that question, but also tell you whether the difference matters.
But please note that SPICe cannot provide legal advice, and nothing in this blog should be read as doing so.
Guidance v legislation
The short answer is that the current lockdown guidance (i.e. the move to Phase 1 announced by the First Minister on May 28) isn’t legally binding in that it isn’t enforceable in the courts by itself.
The Police Scotland website states, for example, that officers will not be enforcing social distancing because:
“this is Scottish Government guidance, not regulations. The police have no power to enforce guidance.”
To establish what is law, you have to look at provisions in primary legislation (Acts of the UK Parliament and Scottish Parliament) and secondary legislation (regulations) which underpin the guidance. This is the same as in other policy areas.
In some instances, what is provided for in legislation is also included in the guidance. As such, it may be the case that elements of the guidance are legally enforceable. Nevertheless, they are directly enforceable because they are legislated for, rather than because they appear in guidance.
What is difficult to anticipate is the way in which those responsible for enforcing the law – in the first instance the police, and ultimately the courts – interpret it. And the extent to which in doing so they look to the guidance.
What primary legislation is there for COVID-19?
The key provisions put in place to deal with the coronavirus pandemic are:
This is UK-wide emergency legislation put in place to enable the UK and devolved governments to respond to the emergency situation and manage the effects of the COVID-19 pandemic. The Act contains temporary measures designed to either amend laws or introduce new statutory (set out in statute) powers which are designed to mitigate the impact of COVID-19. The Act sets out new temporary laws on things like statutory sick pay and the emergency registration of doctors and nurses. The Act also gave Scottish Ministers the power to make regulations (secondary legislation) “for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in Scotland”.
More information on the Act is available in theHouse of Commons Library briefing on the Coronavirus Bill.
Following on from the UK Government’s Coronavirus Act 2020, the Scottish Government introduced its own emergency legislation. The Act contains substantial further powers and measures to ensure the continuation of essential public services in Scotland throughout the coronavirus outbreak. More information about the legislation is available in the SPICe Bill Briefing.
This is additional Scottish emergency legislation which provides more support for business and is also aimed at assisting central and local government and health and social care services to respond effectively to the COVID-19 pandemic. More information can be found in the SPICe Stage 3 Briefing and Bill Briefing.
Lockdown regulations and the road out of lockdown (secondary legislation)
When it comes to “lockdown”, which is generally understood to mean the restrictions on businesses, gatherings, movements and so on, the key piece of legislation in Scotland is the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (“the Regulations”).
The Regulations are based on powers granted to the Scottish Ministers in schedule 19 of the Coronavirus Act 2020 (i.e. the UK emergency legislation). It’s important to remember that secondary legislation has equal standing to primary legislation in the eyes of the law and both are enforceable in the courts. The difference between primary and secondary legislation is that the Parliamentary process is different.
The Regulations have to be reviewed every 21 days and have been amended three time since their introduction.
The most recent amendment is the Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No. 3) Regulations 2020 which were made on Thursday 28 May following on from the move to phase 1 of the Scottish Government’s plan to ease lockdown.
The original Regulations (the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020) provided that individuals “may not leave” the place they are living “Except to the extent that a defence would be available under Regulation 8(4)”.
A defence under Regulation 8(4) is a “reasonable excuse” and specific examples of what is a reasonable excuse are given (for example, the need to obtain basic necessities or seek medical assistance). Nevertheless, the list of reasonable excuses is not exhaustive, giving room for interpretation of what is reasonable.
If, for example, an individual left their home for a reason not listed as a specific “reasonable excuse” and prosecution was sought for it, it would ultimately be open to a court to determine whether this was reasonable in the circumstances.
The most recent change to the Regulations in the move to phase 1 post lockdown (the Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No. 3) Regulations 2020) still requires individuals to stay at home unless they have a “reasonable excuse”. The specific instances of a reasonable excuse have, however, been widened to include, for example, taking exercise with members of one other household and taking take part in outdoor recreation.
It should also be noted that “the need” in Regulation 8(4) has been removed so that people are no longer required to have a need and a reasonable excuse to leave the place that they are living. For example, people are able to leave home to obtain basic necessities, rather than only being allowed to do so when there is a need to. It is, however, difficult to say what the exact effect of this is in practical or legal terms. The intention would seem to be to ease the restrictions on individuals. Nevertheless, how this will play out in practice is unclear. It could be that rather than it being seen as reasonable only going to the supermarket when you’ve run out of supplies, it would now be reasonable to choose to go to a supermarket to buy non-essential items.
Are there grey areas?
There can be some ambiguity as to whether something falls under the Regulations or not.
For individuals, the clear guidance of the Scottish Government during lockdown was to stay at home unless:
- you needed to buy basic food supplies
- you needed to seek medical attention or help a vulnerable person
- you were taking your once daily exercise, or
- you were going to necessary work which could not be done at home.
The Regulations, however, applied an arguably less restrictive test that an individual should stay at the place they live unless they had a reasonable excuse.
For businesses too, there seemed some confusion over whether they were legally required to close or were simply being advised to close. This was a point acknowledged by the First Minister when she answered a question from Willie Rennie MSP on COVID-19 on 1 April 2020. Mr Rennie asked for clarity around which businesses were required to close, and the First Minister stated in response:
“I have tried very hard to be clear on that in a way that accepts up front that we cannot give bespoke guidance that covers every situation, although we try to offer advice wherever possible.
“We have a group of businesses that have been told categorically that they should close. Such businesses include non-essential shops, pubs, restaurants and theatres. At the other end of the spectrum we have businesses that are essential to the on-going operation of the country, such as the businesses that keep the lights on and food flowing through the supply chain. Those essential businesses should keep operating, while following health advice.
“We recognise that in the middle of that spectrum there are different circumstances. We have set out principles for businesses to consider, such as whether the activities that the business is engaged in are material to the wellbeing of the country and if so, whether the business can allow staff to work at home and if not, whether it can ensure safe social distancing. I have said clearly that if a business’s answer to those questions is no, it should be closed.“
The businesses which had been told ‘categorically’ to close were those set out in regulations. For businesses which did not fall into that category (i.e. not essential but not instructed to close) they were given guidance based on the principles of social distancing. The Regulations also provided for further restrictions on businesses (Part 2 (4)) which are aimed at implementing social distancing by, for example, putting a duty on businesses to take all reasonable steps to ensure a distance of 2m between most people (those from the same household and those needing assistance are exempt).
It is clear that there have been a lot of behind the scenes discussions between various sectors and the Scottish Government in relation to ‘opening up’ after the lockdown. These discussions will have involved the Health and Safety executive which is providing advice on how people can work safely in their place of work, as well as offering practical advice for employers on COVID-19 related issues like social distancing.
What can the police do?
The police have the power to enforce the rules around lockdown (and phase 1 of lockdown easing) as they are set out in the Regulations. That means that the police will aim to make sure that the rules are being followed. Police Scotland has said that it will use its enforcement powers only as a last resort, preferring instead to engage with the public in a “positive and constructive tone”.
According to the Police Scotland website, officers will take a four-stage approach to enforcement.
“Engage: ask whether an individual is aware of the government request; establish individual circumstances and how quickly someone can comply
Explain: the risks to public health and to the NHS in line with government guidance
Encourage: voluntary compliance
Enforce: if faced with non-compliance and only as a last resort.”
What’s the point of guidance if it isn’t enforceable in court?
The guidance has arguably had a key role in backing up the spirit of the legislation by offering practical advice on what to do during the coronavirus outbreak.
Guidance can also be helpful in explaining what the law requires people and businesses to do. In relation to the COVID-19 public health emergency, people will have different views on whether the distinction between what was and is legally required of people and what was and is being asked of them has been clear enough.
Although guidance isn’t law, it seems that it could potentially be relevant in a court case in interpreting the law, at least in relation to establishing what the intention is behind certain aspects of the COVID-19 legislation.
Ultimately, legislation is only one part of a legal system. In this case, up to now the public health guidance seems largely to have been followed even though it isn’t “law” as such. That perhaps isn’t surprising given the threat posed by the pandemic and may also reflect the fact that, in the UK, policing is normally seen as being based on consent rather than coercion. In that respect, it seems that for many people, the “stay home, save lives message” may have had just as much impact as the law itself.
But please remember that SPICe cannot provide legal advice, and nothing in this blog should be read as doing so.
Sarah Atherton and Angus Evans